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On Dec 13 2013 by Klasko Immigration

Our First Post-DOMA Same Sex I-130 Approval

Even though we have filed hundreds of family-based petitions, yesterday was a first for KILP.

As we discussed back in July, the Supreme Court struck provisions of Defense of Marriage Act (“DOMA”) in United States v. Windsor which opened the doors to the awarding of immigration benefits on the basis of same-sex marriages. Soon thereafter, USCIS provided guidance on the filing of these types of cases. This guidance instructs that so long as the laws of the place of the marriage celebration hold the union as lawful, then immigration-related benefits may attach to the same-sex spouse.

As an extremely general estimate, marriage-based adjustment of status cases take between 4-8 months to fully adjudicate from the time of filing to the issuance of the Green Card. Given that the Windsor decision was issued in late June, the first same-sex couples filing post-DOMA are now having their adjustment of status interviews and obtaining Green Cards for the beneficiaries, even though they might have been married for many years.

But following the excitement of the Windsor decision, many open questions remain: How would adjudicators treat these cases? Will there be any bias or prejudice against these unions given the immigration laws’ historically hostile treatment of homosexual individuals? Will proving that same-sex marriages are bona fide be more difficult given their controversial nature, their fundamental differences in family structure compared to heterosexual marriages, and that most jurisdictions have only permitted the unions relatively recently?

Given that the first same-sex I-130 approval in history occurred on June 28, 2013, virtually no immigration attorneys had experience in dealing with the government adjudicating same-sex I-130 filings. Happily, that is now changing.

Yesterday, I had the pleasure of accompanying a same-sex couple to USCIS’s Philadelphia office for a marriage-based interview. I am happy to report that the experience was not at all different than it would have been had the couple been in an opposite-sex marital union. The officer at the interview treated both with dignity and respect, and his questions regarding the relationship were similar to those heard countless numbers of times. We were quite pleased with how the situation was handled. Nothing stood out as unique about the process compared to our hundreds of other family-based cases.

Congratulations to this couple, who were informed last night that the petition and beneficiary’s Green Card application were approved!

Hopefully, as more and more same sex-couples apply for benefits following DOMA’s downfall, adjudicating same-sex cases will indeed be as routine as the millions of cases filed by opposite-sex spouses. If our experience yesterday is a sign of what is to come, then USCIS appears to be well-prepared to handle these types of filings, now that millions of individuals who were shut out of the U.S. immigration system are finally eligible for immigration benefits.